Brexit has another day in court!

Fri 25th Nov 2016

The British government will take Brexit to court one more time. Having lost 0:3 in the High Court, it will seek to convince the Supreme Court that the High Court got it wrong when it determined that the government's prerogative power does not extend to empowering it to trigger Article 50 of the Treaty on European Union (“Article 50”) and thereby commence the UK's irreversible exit from the EU.

A panel of three Supreme Court judges heard the government's appeal application and granted the government an appeal, which will be heard over at least four days commencing on 5 December 2016. And the Court's decision is not expected before the Christmas break. It is perhaps reasonable to presume that the panel, when approving the application for an appeal, was giving more consideration to the importance of the subject matter of the case and ensuring that what emanates from the judicial system is not only the correct decision but also seen to be the correct decision, rather than giving a hint that perhaps the High Court made a material error in law when making its decision.

On one view, if Brexit was a “normal case” of lesser importance to the nation as a whole, then it is unlikely that the Supreme Court would have granted an appeal. One would have to swim deep and for a very long time to find a case, if there is such a case to be found, in the ocean of case history where a High Court (or equivalent) bench comprising three judges including the Lord Chief Justice (the most senior judge in the judicial system), Master of the Rolls (the second most senior judge in the judicial system) and a Lord Justice were so unanimous in their agreement of the law that their decision was written in a single judgement, yet had made an error in the law of such magnitude that their decision was overturned on appeal.

As to appeals in the Supreme Court, last year about 60% of the applications to the Supreme Court were refused. And of those 40% of applications that were approved and subsequently heard, about 50% were successful in their appeal. And so, typically, the odds of successfully overturning a loss is about five to one against (about a 20% chance). However, it is likely in those successful instances that the appellants had their cases heard by a single judge, in the first instance, or there was not unanimity among judges or the bench lacked the eminence of the High Court bench which first heard the Brexit case. If the odds are our only guide, then we can say that the government has a 50% chance of winning in the Supreme Court. As we see below, facts and case precedents are a better guide and they do not run with the government.

The appeal in the Supreme Court will be heard before 11 judges. Typically, nine or seven judges hear the more important and challenging cases and so when 11 judges crowd the bench we know that this is indeed a history-making case. And yet, the legal question remains the same as it did in the High Court: whether or not the power to trigger Article 50 falls within the government's prerogative power to deal with treaty matters or that because triggering Article 50 of the treaty will in effect derogate an act of the British parliament (European Communities Act 1972) and affect the rights of citizens, the power lies with parliament.

The government's chance of success likely rests on whether or not it can convince at least six judges, a majority, to consider the matter narrowly and so support the well-established view that the government has the power to deal with treaty matters and triggering Article 50 is a “treaty matter”.

Running against the government is the likelihood that six or more judges might consider the matter widely and form the view that Article 50 is a “constitutional matter”, and so support the High Court's unanimous view that absent an explicit and unambiguous intention to the contrary given by parliament to the government, then the government's prerogative power operates within the context that it cannot act so as to derogate parliament's constitutional and exclusive power to do the things which affect parliament's laws and the rights parliament grants to or removes from citizens. There are two strong precedent cases running against the government which the High Court considered favourably (at paras 98 and 101 respectively) when making its decision. In Walker v Baird, an 1892 case heard before the Court of Chancery (which is now a division within the High Court), the Court explained that: “the Secretary of State cannot use the Crown's powers in this sphere in such a way as to take away the rights of citizens” (Walker v Baird [1892] AC 491). Note that “the Crown's powers” is an alternate way of saying the government's prerogative power.

And in 1997 in the case of R v The Secretary for the Home Office, also heard in the Court of Chancery, the Court explained that: “[t]he executive cannot exercise the prerogative power in a way which would derogate from the fulfilment of a statutory duty. To that extent, the exercise of the prerogative power is curtailed so long as the statutory duty continues to exist.” (R v Secretary of State for the Home Department, ex p. Fire Brigades Union [1995] 2 AC 513).

A risk in triggering Article 50 is that it will lead to British citizens losing rights. For example, the right for millions of British citizens to continue to reside in Spain or France, etc. is subject to the UK being a member of the EU. That right is not a personal or human right pertaining to a British citizen, it is a right which pertains to the UK's membership of the EU. Having triggered Article 50, the government might not be able to negotiate with the EU Commission to maintain those rights in the form that they are now. And absent parliament explicitly and unambiguously delegating power to government to do things which affect law and rights, then the government's prerogative power is curtailed. Central to the High Court's decision was its view that parliament had not made a delegation of power to the government in the required form within the context of Brexit, so as to authorise the government to do things which affect laws and rights.

Whether or not the government will pull off a surprise victory, only time will tell: in matters of law, never say never! However, we can reasonably presume that a pivotal element in the Supreme Court's decision will be its view as to whether or not Article 50 amounts to a “constitutional matter” found to be resident in a treaty and requires parliament to exercise its constitutional power to trigger it. Or, in the alternative, Article 50 is a “treaty matter” requiring an exercise of the government's prerogative power. Perhaps a hint to what view the majority of the Supreme Court might form lies in Article 50(1): “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.”